National's "we know you are going to do bad things" law is now before the House. Can the people of Whanganui now sleep safe in their beds?

So the Government's proposed "Public Protection Orders" legislation has finally been rolled out. In a nutshell, it will permit prison authorities to go to the High Court and seek an order that because "there is a very high risk of imminent serious sexual or violent offending by the respondent", an individual should be detained indefinately in accommodation on prison grounds. In essence, the individual subject to the order will live in a house inside the prison fences (but not in a prison cell), be required to do what the residence's staff tell her or him to do and be subject to their monitoring ... until they are "not dangerous" enough to be released. There's then a bunch of safeguards built into the process regarding the right of a person to challenge the orders, get independent assessments, legal advice, etc, etc.

Seeing as I've posted on this issuebefore, I thought I'd keep following it with three initial thoughts on the legislation. I may have more to say on it later, depending on how other work commitments pan out.

First of all, the proposed legislation won't just target "dangerous prisoners" who are soon to be released from prison. Under clause 7(1)(b)(i), it also will apply to a "person [who] is subject to an extended supervision order andis, or has been, subject to a condition of full-time accompaniment and monitoring". That is, individuals who presently are out in the community under a watchful eye can get yanked back behind prison walls because they are considered too dangerous to be out there in public ... even though they've actually been living in the community without doing any harm (otherwise they'd already be back in jail for doing so).

Now, can anyone think of anyone who presently is living in ... oh, let's say, Whanganui ... under an ESO with full-time accompaniment and monitoring? And can anyone remember how that development was responded to by "middle New Zealand"? So while Judith Collins may tell us that "PPOs are not being designed to target a specific individual ...", let's just say that it's awfully fortuitous that they just happen to be designed in a way that may catch and return to detention a certain unnamed individual.

Second, this is how the Bill is justified in its "General Policy Statement":

Public safety is jeopardised by a small number of people who reach the end of a finite prison sentence or are subject to the most intensive form of an extended supervision order and pose a very high risk of imminent and serious sexual or violent reoffending. Less restrictive forms of supervision are not adequate for preventing almost certain further offending.

Well, that sounds reasonable, doesn't it? After all, these are people who've done bad things in the past that have had terrible consequences for their victims. And if they are almost certainto come out and do more bad things with terrible consequences for other victims, then it would be madness to let them go and just wait for the inevitable result before locking them up again!

Except ... it isn't that simple. You just cannot say any given individual prisoner is "almost certain" to commit a particular sort of crime upon release from prison. The most you can say is that a prisoner displays certain characteristics that make him or her more likely to reoffend in a certain way after his or her release than other prisoners who do not have those characteristics. But there is no available predictive tool in the criminologist's or psychologist's kit that allows them to say with any confidence that "Prisoner X almost certainly will commit this offence upon his or her release."

Now, I know we hear of anecdotal cases where someone - often a prison guard - will warn his or her bosses that "if such-and-such is let out, he will kill someone". And, sure enough, that prisoner is released and goes on to kill, which then makes for a media firestorm. But what we don't ever hear about are the "false positives"; that is, cases where a prison guard (or other concerned individual) gives a warning of dire consequences following the release of some individual ... and then nothing happens. And I'm prepared to bet that this happens at least as often as do correct predictions of future harm.

Furthermore, with respect to the kinds of prisoners who are being targetted by this proposed legislation, things are even murkier. In the "Agency Disclosure Statement" at the front of the Department of Corrections Regulatory Impact Statement on the Bill, the Department's General Manager (Strategy, Policy and Planning) notes that a limit to the Department's analysis is:

Data - it is not possible to accurately report recidivism data for such a small and unique subset of offenders.

Did you get that? The Department of Corrections is saying that its analysis (which, incidentally, recommends that the Bill be introduced) cannot with any certainty tell you how likely it is that the people who will be subject to it will reoffend at all - let alone commit the kinds of violent or sexual offences that they initially were imprisoned for. It's just that they know there is an "elevated risk" ... which is a long way short of being able to say it's a "virtual certainty".

Finally, the Corrections Department, in its Regulatory Impact Statement on the proposed legislation, goes on to note that:

The introduction of a continuing detention order is likely to be controversial both in New Zealand and internationally, is likely to be found to be inconsistent with the BORA and New Zealand's international obligations, and may result in complaints to the UN Human Rights Committee.

In point of fact, it would appear the Attorney-General has not attached a s.7 report to the Bill indicating his opinion that it is inconsistent with the New Zealand Bill of Rights Act - at least, there's no such paper listed on Parliament's web site. And if there really is no s.7 notice, I don't know why the Attorney-General thinks that the Bill passes muster under that legislation as the advice he received on the issue isn't yet available on the Ministry of Justice's website. Let me say that I'll be very interested to see that thinking.

But for now, I'll just make this comment. The Department of Corrections admits that its advice most likely is inconsistent with the NZBORA - that is, it recognises that the various limits on the rights of the individuals who will be subject to these PPO's cannot be demonstrably justified in a free and democratic society. However, it still thinks that this legislation is a good idea and that PPOs should be introduced "because it would provide the best means of enhancing public safety".

This line of reasoning suggests one of two things is going on, neither of which reflect particularly well on the Department.

Either the Department of Corrections just doesn't get how the NZBORA works - that public safety is a legitimate end for Government to pursue and can justify limiting the rights of individuals, provided the limits on those rights are narrowly tailored to achieve the end, rationally connected to that end, and proportionate to the overall end sought. But if the limits on individual rights don't meet those tests, then you can't use "public safety" as a trump card that defeats rights altogether. In other words, "public safety" and "rights" aren't antithetical opposites, with one having to triumph over the other - they are complimentary ends, each of which helps to define how far the other should stretch.

Alternatively, the Department of Corrections knows full well how the NZBORA works, but also knows that it is basically irrelevant to the issue because there's no way the "rights" of a bunch of low-life scum criminals are going to stop the Government putting in place a piece of legislation it promised. So there's no real need to consider it in creating this policy, because it isn't going to change what happens one way or the other.

In either case, can anyone remind me why we have a Bill of Rights Act?

Comments (18)

Judith Collins says the proposed legislation for public protection orders will only apply to “a very small number of extremely dangerous people” – between 5 and 12 offenders over a ten year period. Not true.

"Over a 10 year period, approximately 3,840 released prisoners will meet the criteria of “very high risk”. However, Murray Wilson is not one of them. Murray Wilson’s lawyer, Andrew McKenzie says Wilson’s RoCRoI is only .48 – which means he is assessed by Corrections as having a 48% risk of reoffending. That puts him in the “medium risk” category." Because of his advancing age, Prof Tony Ward rates Wilson at a 6% chance.

If the Government was really concerned about public safety, why don't they reduce the legal blood alcohol limit (for drivers) from .08 to .05. The Transport Ministry says reducing the level could save 33 lives, prevent up to 680 injuries, and save up to $238 million every year.

I take your point on the numbers of prisoners that meet the "very high risk" criteria. But does it make any difference that the Bill goes on to say:

The court may not make a finding [that there is a very high risk of imminent serious sexual or violent offending by the respondent] unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence of the following characteristics to a high level:

(a) an intense drive or urge to commit a particular form of offending:

(b) limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:

(c) absence of understanding or concern for the impact of offending on actual or potential victims:

(d) poor interpersonal relationships or social isolation or both.

How common is it for prisoners to not only be at "very high risk" of committing another violent/sexual offence and display these characteristics?

Andrew#: The problem is those four points are very subjective. In reports I write for the courts, I often make comments suggesting the offender has "limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties" - and that this why they have a drug addiction. That description fits a high proportion of offenders with alcohol and drug problems including many who are at moderate risk of reoffending.

Similarly, if a prisoner has a large number of convictions (and he is unlikely to be assessed at very high risk unless he does), it is easy to make the case that he has "an intense drive or urge to commit a particular form of offending." Why? Because basically there are only three kinds of offending: violence, sexual and acquisitive (shoplifting, burglary, pecuniary gain etc) - so just about all offending falls into one of these 'particular forms'.

In my view, it would be more helpful if the offender was not only 'high risk' but also had to have a formal diagnosis of psychopath - from two independent psychiatrists.

First, like another comment made on your previous post on this subject, I am not sure the difference is that great between this bill and the various provisions on the statute books that govern preventive detention. This is not a bill that permits arbitrary detention, but rather is focussed on extremely high risk repeat sex and violence offenders.

Second, you ask for a reminder about why we have a Bill of Rights Act. I'll step up to that.

The efficacy of the Bill of Rights Act does not start and finish with section 7. This bill looks to me as if it has clearly seen a lot of tempering as part of the drafting process. I imagine it has taken so long to draft this bill because getting it through the Ministry of Justice, Crown Law, and Parliamentary Counsel, all of whom call to account on compliance with the Bill of Rights Act, would have been agony.

I read your post, and thought cripes! Another piece of legislation running rough shod over the rights of the citizenry. But when I went and read the bill itself, I was surprised at how tightly focussed it is. If a person is detained under it, the bill itself appears to ensure that the courts will have a lot of scope to oversee its proper use.

Like you, I will be interested in the eventual report on the legislation. But the form of the bill at the moment seems more testament to the strength of the influence of the Bill of Rights Act on our system than its lack of influence as you suggest.

First, on the preventative detention point - I accept that the effect of Public Protection Orders and a sentence of Preventative Detention are pretty much the same. In point of fact, I think (as I suggested here) that the point of this legislation is to catch the few offenders sentenced for crimes committed before the current law on PD took effect (in 2000, from memory). However, the fact remains that this is an after-the-fact change to a persons sentence ... and that is a problem in both rule of law and NZBORA terms. And it is a fact that we cannot tell exactly which individuals that we change the sentence of will commit further crimes (just as we actually can't tell exactly which people we sentence to PD will commit further crimes). All I'm saying is, we need to recognise that this is what is being proposed - then argue whether the reasons for doing so are good enough.

Second, on the NZBORA point ... true, this may well have been carefully considered in the actual drafting of the legislation. (I note that the MoJ website still hasn't posted the advice given to the AG on this Bill, so we haven't seen the reasons why it is considered to pass muster). My comment about the apparent irrelevance of the NZBORA was made in relation to Correction's approach to it in its RIS advice. Basically, it says "the legislation we propose in all likelihood will breach the NZBORA, but we should go ahead with it anyway because of public safety". This is, I suggest, terrible analysis. I'd expect to instead see:

(1) An acknowledgement that "public safety" is something that is incorporated within an NZBORA analysis, not an exogenous value that trumps it; and,

(2) Some careful assessment of how the legislation could be structured/worded so as to properly balance the NZBORA rights and the value of public safety (as it appears did happen in the legslative drafting process).

So, yes - in the final wash the Bill may have been put together consistently with the NZBORA (but I'd still like to see the advice to the AG on this issue). However, I'd be happier if the departmental advice to ministers at the very start of the legislative process was doing this work, rather than leaving it as a sort of afterthought.

I think we need to be honest about the civil liberties arguments engaged here.

This is a debate about the civil liberties of a small group of people - that is, very high risk sexual and violent offenders, who are in the judgment of two clinicians and the High Court, imminently likely to reoffend and psychosocially highly dysfunctional.

As you say, the conventional legal view ("rule of law") is that once their sentence is served, such individuals have a right to freedom until they offend again.

I suppose the bill places a higher premium on the protection of individuals who will be harmed if these offenders commit another sexual or violent crime. To that end, it is worth remembering that the harm these offenders can inflict is potentially very, very serious – and, if it does not involve a murder, stay with a victim for a lifetime.

In legal terms this is the "justifiable limitation" being placed on the rights of this group of offenders - even if they have not yet committed another crime, they can be supervised very closely, and possibly detained again if they are judged as being unbalanced and a very high risk.

Is it justifiable? It is a debate worth having, if it is debated honestly.

I'm not sure what underlies the tone of your last comment. Of course the issue is as you outline it, so I don't know why you feel the need to say it ought to be "debated honestly" ... can you point to examples of where you think it hasn't been?

Now, given that we are going to honestly confront the trade-off between civil liberties (and rule of law principles) with personal security, the key question (it seems to me) is what is the evidence that existing mechanisms of control on such offenders (in particular, extended supervision orders), are not sufficient to prevent the potential harms (the RIS from Corrections simply says existing law isn't adequate, but not why ... the examples of alleged failures are witheld from us)? Having that evidence might help us judge whether or not this is a justified measure or a knee-jerk overreach.

By "honest debate" I mean facing up to some of the difficult public policy questions sitting behind this bill.

I don't have anything to "do" with this legislation - I am just a lawyer that takes an interest in public policy.

I see your post as making some barbed criticisms of officials in the Department of Corrections - who have been reasonably honest in saying that this legislation may raise human rights concerns, both domestically and internationally. It is not their job to vet their bill for human rights problems, and they wouldn't have been thanked for making those comments.

Why shoot those messengers? They have stuck their necks out, and after all, they have the same message as you.

I also think you don't really acknowledge that this bill faces up to some difficult questions. It is easy to write this off as "knee jerk" politics. But as you say yourself, there are some individuals who cannot be subject to a sentence of preventive detention. And those individuals, by definition, have the capacity to cause very serious harm.

So there are real publlic policy issues, and real peoples' lives at stake. That's not being melodramatic, this is sex and violence we are talking about.

My reading is that there has been hard work behind the scenes to ensure that this bill is only focussed on this relatively restricted group of people - very high risk sexual and violent offenders - and contains as much in the way of human rights protections as it can.

So when you say "can anyone remind me why we have a Bill of Rights Act?", I say: to ensure that there are checks and balances when legislation like this is required. And some people, nameless as they are, appear to have been hard at work using that Act to help make a fist of a difficult bill.

I simply don't accept that Corrections saying "the policy we are advocating probably breaches the NZBORA, but do it anyway" is doing their job properly. It IS their job to vet their proposed legislation for human rights problems - have a read of the RIS and you'll see that. And as you say, it appears there is a way that the policy objective and the issue of individual rights can be made to work together, so I think this hard thinking ought to have been done at the start of the policy road. Hence, while the NZBORA obviously did figure in the final legislative output, that wasn't my point. My point was that it should be figuring in ALL stages of policy development, including the initial analysis of whether legislation is needed at all.

As for suggesting that I haven't acknowledged the potential harms that these offenders may cause ... I disagree. All I've said is that the precise risk they pose is not as great as the explanatory note to the Bill states (without denying that they pose SOME greater than average risk). Is there anything dishonest in that?

I imagine, but don't know from personal experience, that consideration of the NZ Bill of Rights Act figured in all stages of this bill. How could it not have? It's a civil detention regime, the parliamentary drafters would have been all over it like an itchy rash. Just because the regulatory impact statement says that the bill "probably breaches" human rights it doesn't mean it was an afterthought.

Your quest for "evidence" to justify the bill is interesting. Very professorial. But don't you think the "precise risk" of the Beast of Blenheim, or any unbalanced serial sex or violent offender, reoffending is hard to quantify? Isn't that what the RIS owns up to? Perhaps here a decision is being made in favour of the safety of communities, which is a political call that might be understandable.

having a debate is all very well, but when you say "I imagine, but don't know from personal experience, that consideration of the NZ Bill of Rights Act figured in all stages of this bill", can I suggest that you actually follow the link I provided to the Department of Corrections' original advice to the Minister on this legislation? Because it seems to me that you are arguing from a somewhat faulty assumption rather than based on what they actually said, and it might be better if you read that advice for yourself.

I have read it, Andrew. It presents 5 policy options, and explicitly discusses the human rights implications. It is dated March 2012, isn't it? Even six months ago, the hapless officials had obviously been turning in their beds for a while. The bill also looks to me as if it incorporates human rights protections as far as it can.

Which is why I bothered, when I saw you make a serve at said hapless officials and then ask for a reminder of "why we have a Bill of Rights Act", to make a comment on your blog. I thought it wasn't a rhetorical question, perhaps it was.

Right. So you've seen that the Corrections' advice basically was "we realise that what we suggest likely will be inconsistent with the NZBORA, but we think you should go ahead and do it anyway." Now, this is "explicitly discussing human rights implications", in the same way as the advice "shooting your wife will be murder, but you should go ahead and do it anyway" takes notice of the Crimes Act. What I want to see is not just a recognition of inconsistency with human rights norms, but an immediate response that this inconsistency requires fixing and discussion of how to do so before saying "go ahead and legislate".

Your response to this seems to be "well, it got sorted out later on, so what's the problem?" Fine - good that this happened (but, I reiterate, I still want to see the advice given to the Attorney General ... because it is interesting he didn't put a s7 notice on this Bill in light of his response to this one.) But just because someone else came in later on in the piece to sort the matter out does not excuse Corrections for not having done the work up front.

You're a lawyer. Consider this analogy. A client comes to your firm for advice on a problem. One of your colleagues looks at the problem and gives some options to respond to it. The final advice they give to the client is "my recommendation is that you should adopt option X, even though it would be in breach of legislation, because I think it would best fix your problem." Then, after this advice goes to the client, some other lawyers in your firm come on board the file and find a way to make option X work in a way that actually doesn't breach any legislation.

Do you now all pat yourselves on the back for a job well done, or do you say to the colleague who gave the original advice "what on earth were you thinking ... you need to shape up!"

Do you know something about this process you're not telling us? You're not happy.

Sometimes officials are told to pursue legislation projects even when they present human rights concerns, don't they? It looks to me like the officials identified the human rights concerns up front. Good on them.

Perhaps, heaven forbid, some higher power said to them "Thanks for that. But I want civil detention. Eliminate the human rights concerns if you can. If you can't, ameliorate them. But I want it, because people should be as safe as they can be from high risk rapists that were convicted before preventive detention."

Fine. If the Minister wanted to pursue civil detention (which, you'll remember from your reading of the RIS, wasn't the option recommended by Corrections) at all costs, then She should be open and honest about Her preferences (which, you'll also remember, is what you said ought to happen at the outset of this discussion) after getting advice from her officials. However, we're not talking about Ministerial policy preferences - we're dealing with officials who are purporting to give their best considered advice to the Minister on the various options available, based on the evidence to hand and their objective analysis of the factors in play. I'd just like them to do this job properly before they choose to recommend legislation ... which doesn't seem like an overly demanding request to me. And if it really is the case that the officials tailored their advice so it simply says what their Minister wants to hear (while pretending that it is the outcome of a rigorous and objective analysis of the issue), then this is a bad thing and represents a failure on their part to do their job correctly.

Anyway, you can have a final word on this if you feel you need to and it doesn't eat up too many more of your billable hours. For my part, I think I've said as much as I can about it.